IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

_____________________

No. 18-0207

_____________________

STATE OF WEST VIRGINIA,

Respondent

v.

HAYDEN DAMIAN DRAKES,

Petitioner

___________________________________________________________

Appeal from the Circuit Court of Cabell County

The Honorable Alfred E. Ferguson, Judge

Criminal Action No. 16-F-344

REVERSED AND REMANDED

_________________________________________________________

Submitted: February 18, 2020

Filed: June 12, 2020 

Matthew Brummond, Esq. Patrick Morrisey, Esq.

Public Defender Services Attorney General

Charleston, West Virginia John M. Masslon II, Esq.

Counsel for the Petitioner Assistant Solicitor General

Caleb A. Ellis, Esq.

Assistant Attorney General

Charleston, West Virginia

Counsel for the Respondent

JUSTICE WORKMAN delivered the Opinion of the Court.

FILED

June 12, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “A trial court’s instructions to the jury must be a correct statement of the law

and supported by the evidence. Jury instructions are reviewed by determining whether the 

charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues 

involved and were not mis[led] by the law. A jury instruction cannot be dissected on 

appeal; instead, the entire instruction is looked at when determining its accuracy. A trial 

court, therefore, has broad discretion in formulating its charge to the jury, so long as the 

charge accurately reflects the law. Deference is given to a trial court’s discretion 

concerning the specific wording of the instruction, and the precise extent and character of 

any specific instruction will be reviewed only for an abuse of discretion.” Syl. Pt. 4, State

v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).

2. Murder in the second degree is the unlawful, intentional killing of another 

person with malice, but without deliberation and premeditation. To the extent that State v. 

Morrison, 49 W. Va. 210, 38 S.E.481 (1901), State v. Haddox, 166 W. Va. 630, 276 S.E.2d 

788 (1981), and their progeny are inconsistent with our holding, they are expressly 

overruled.

3. “Gross provocation and heat of passion are not essential elements of 

voluntary manslaughter, and, therefore, they need not be proven by evidence beyond a 

reasonable doubt. It is intent without malice, not heat of passion, which is the distinguishing 
ii

feature of voluntary manslaughter.” Syl. Pt. 3, State v. McGuire, 200 W. Va. 823, 490 

S.E.2d 912 (1997).
1

WORKMAN, Justice:

The petitioner, Hayden Damian Drakes, was convicted by a jury on one count 

of second-degree murder. He appeals the February 26, 2018, order of the Circuit Court of 

Cabell County, West Virginia, denying his Motion to Set Aside the Verdict, and his Motion 

for Judgment of Acquittal Notwithstanding the Verdict, or, Alternatively, Motion for a 

New Trial, and sentencing him to a term of forty years in prison, with credit for time served, 

and no credit for home confinement. The petitioner argues that the circuit court erred in 

instructing the jury that it could convict him of second-degree murder if it found intent to 

kill or to cause great bodily injury, and in instructing the jury that provocation and heat of 

passion were elements of voluntary manslaughter. Upon careful review of the parties’ brief

and oral arguments, the appendix record, and the applicable law, we find the circuit court 

erred in its instructions to the jury for both second-degree murder and voluntary 

manslaughter. Therefore, we reverse the petitioner’s conviction and remand the case to the 

circuit court for a new trial. 

I. Facts

Both parties agree that the facts are largely undisputed regarding an 

altercation between the petitioner and Brett Powell, the victim, on March 30, 2016, which 

led to the victim’s death and to the petitioner being charged with second-degree murder. 

The evidence introduced at trial showed that on March 30, the petitioner and a group of 

friends went to Club Deception, a bar located in downtown Huntington, West Virginia, to 

celebrate the petitioner’s birthday and the anniversary of two other members of the group, 

Joshua and Danielle Spurlock. The group went to the outdoor patio area of the bar. While 
2

in this area, they were approached by the victim, Brett Powell, who was a stranger to the 

group. The victim approached the group, introduced himself as “Tim,” and asked if anyone 

wanted to purchase illegal drugs. The members of the group declined and asked the victim 

to leave. 

The victim left, but returned a few minutes later. This time, the victim asked 

Mrs. Spurlock, who was pregnant, and another member of the group, Liza Slone, if they 

wanted to purchase any drugs. Mr. Spurlock informed the victim that he was speaking to 

his wife, that she was pregnant, and that the victim needed to leave. Again the victim left, 

but then again he returned, after Mr. Spurlock had gone inside the bar to use the restroom. 

When one of his friends told him that the victim was back and had again approached his 

wife, Mr. Spurlock returned to the group and expressed his frustrations both to his wife and 

to the petitioner. 

Thereafter, the victim, despite being told that Mrs. Spurlock was pregnant, 

came up to her, pushing a drink in her face, shoving it towards her mouth. Mr. Spurlock 

testified that he “smacked the cup out of . . . [the victim’s] hand.” Mr. Spurlock testified 

that he came “face-to-face” with the victim and told him he needed to leave. Mr. Spurlock 

testified that he was ready to fight the victim if the victim did not leave the bar. At this 

point, the petitioner stated to Mr. Spurlock that he was going “to try to play peacemaker 

and . . . just deescalate the situation” by speaking to the victim.
3

The petitioner found the victim in the patio area of the bar. He told the victim 

to leave the group alone, after which, in petitioner’s recounting of events, although his

intent was not to fight or hurt the victim, “[w]e exchanged words.” The victim then 

“grabbed” the petitioner, whereupon the petitioner lost his temper and “just started hitting” 

the victim. The evidence introduced at trial, which included videos from the bar’s security 

cameras, showed the petitioner punched the victim in the face—seven or eight times—until 

the victim fell to the ground. When the victim fell, the petitioner stopped hitting him and 

left the bar with his friends for another bar down the street. 

Another patron in the bar, Danielle Hayes, came out on the patio after the 

incident. She noticed that the victim was having a seizure, so she turned him on his side. 

When the victim stopped breathing, she performed CPR, remaining with the victim until 

emergency personnel arrived. The victim later died. The medical examiner testified that 

the cause of the victim’s death was blunt injuries to the head. 

The petitioner was arrested in the early morning of the next day in connection 

with the assault. The petitioner agreed to be interviewed by Detective Shane Bills with the 

Huntington Police Department. Detective Bills testified that during the interview, the 

petitioner admitted to hitting the victim, but denied trying hurt him.

On August 17, 2016, the petitioner was indicted on one count of seconddegree murder. The petitioner’s two-day jury trial began on December 19, 2017. At the 
4

close of all the evidence, the events giving rise to the two issues presently before the Court 

occurred during the instructional phase of the petitioner’s trial. The first issue arose during 

the parties’ discussion with the circuit court about the instructions to be given to the jury, 

when the State objected to the petitioner’s proposed instruction on second-degree murder. 

The instruction, in relevant part, would have informed the jury that: “Murder in the second 

degree is the unlawful, intentional killing of another person with malice but without 

deliberation or premeditation.” Conversely, the State’s proposed instruction was as 

follows: “Murder of the Second Degree is committed feloniously, maliciously, but without 

deliberate or premeditated action and with the intent to kill or to cause great bodily harm.”1 

(Emphasis added). In similar vein, the State also sought the following instruction, which 

was given by the Court: 

The Court further instructs the jury that a conviction for 

second degree murder cannot be sustained without proof 

beyond a reasonable doubt that the accused had the requisite 

criminal intent. In regard to second degree murder, the 

requisite criminal intent would be the intent to do great bodily 

harm, or a criminal intent aimed at life.

(Emphasis added). Even while agreeing to give the State’s instruction, the circuit court 

commented that, “I don’t like that[,]” explaining, “You are saying you can find him guilty 

of Second Degree Murder if there is intent to kill or cause great bodily harm.” (Emphasis 

added). The petitioner again objected, stating “Murder requires specific intent to kill, 

Judge . . . ,” and the circuit court agreed: “I have always felt that it did.” The circuit court 

 

1 The circuit court did not give this specific proposed instruction.
5

stated to the assistant prosecutor, “If you want to give that, I will; but I will leave that up 

to you.” Subsequently, in continuing the argument that intent to do great bodily harm is 

an element of second-degree murder, as the State continued to insist, the circuit court 

stated, “Okay. You all want it, you will get it; but you are going to have to lie with it.” 

The circuit court specifically cautioned the State: “The only problem with these things 

[referring to instructions], they [referring to this Court] will reverse on instructions quicker 

than anything else. That is the only thing.” 

The second issue on appeal concerns the voluntary manslaughter instruction

that was given to the jury. In this regard, the petitioner asked the circuit court to instruct 

the jury that “‘Voluntary Manslaughter’ is the unlawful and intentional killing of another 

without malice.” The circuit court initially agreed to give the petitioner’s instruction even 

though the State argued that its instruction was better because it contained the elements of 

sudden provocation and heat of passion. The circuit court stated, “It is intent to kill without 

malice, in my opinion. I think that is right.” Despite the circuit court initially agreeing to 

give the petitioner’s proposed instruction, the State pressed the circuit court to use its 

instruction, which included the elements of sudden provocation and heat of passion. The 

petitioner countered that these were not elements of the crime; if the jury found that the 

petitioner did not act with malice, “then they may think, well, there is sudden provocation

[even] if there is no malice. . . . I think it is just pretty clear the jury has to believe there is 

no malice involved.” The circuit court ultimately ruled that it would give the State’s 

instruction on voluntary manslaughter: “[T]he Defendant . . . did feloniously, unlawfully 
6

and intentionally, without premeditation, deliberation or malice, but upon sudden 

provocation and in the heat of passion kill . . . [the victim].”2

During the jury’s deliberations, it sent the following message to the circuit 

court: “Please submit instructions with definitions of Involuntary Manslaughter, Voluntary 

Manslaughter, and Murder Two.” The circuit court gave the jury the same instructions that 

it had previously read to them, but in writing. The jury convicted the petitioner of seconddegree murder. After the circuit court considered the petitioner’s post-trial motions, the 

petitioner was sentenced to the maximum term of forty years in prison.

II. Standard of Review

Both assignments of error concern the instructions given to the jury. Our 

review of the jury instructions is governed by the following standard of review: 

A trial court’s instructions to the jury must be a correct 

statement of the law and supported by the evidence. Jury 

instructions are reviewed by determining whether the charge, 

reviewed as a whole, sufficiently instructed the jury so they 

understood the issues involved and were not mis[led] by the 

law. A jury instruction cannot be dissected on appeal; instead, 

the entire instruction is looked at when determining its 

accuracy. A trial court, therefore, has broad discretion in 

formulating its charge to the jury, so long as the charge 

accurately reflects the law. Deference is given to a trial court’s 

discretion concerning the specific wording of the instruction, 

and the precise extent and character of any specific instruction 

will be reviewed only for an abuse of discretion.

 

2 The jury was also instructed on involuntary manslaughter, but the petitioner raises 

no error regarding the involuntary manslaughter instruction. 
7

Syl. Pt. 4, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). We have also stated 

that “if an objection to a jury instruction is a challenge to a trial court’s statement of the 

legal standard, this Court will exercise de novo review.” Id. at 671, 461 S.E.2d at 177. 

Finally, if, in connection with the legal sufficiency of the instructions, it is determined that 

the petitioner failed to object to one or more instruction regarding the legal sufficiency, our 

review would be under the plain error standard. Id. n.13 (citing State v. Miller, 194 W. Va. 

3, 459 S.E.2d 114 (1995)). 

III. Discussion

A. Second-degree Murder Instruction

The first issue before this Court is whether the circuit court erred in 

instructing the jury that it could convict the petitioner of second-degree murder if it found 

intent to kill or to cause great bodily harm. The petitioner argues that second-degree 

murder requires a finding of intent to kill, as we previously held in Guthrie, 194 W. Va. at 

676, 461 S.E.2d at 182, and that “aberrant case law misled the State below[,]” and thus the 

circuit court, into error. Succinctly put, by instructing the jury that it could convict the 

petitioner of second-degree murder if the petitioner merely intended to cause great bodily 

harm to the victim, the circuit court effectively removed intent to kill as a required element 

of the crime. In its brief in opposition, the State argues that it has long been recognized 

that “intent to do great bodily harm is a sufficient level of criminal intent for a second 
8

degree murder conviction[,]”

3

and that this Court has never overruled the common law 

formation of the intent necessary to establish second-degree murder. See State v. Davis, 

 

3We note at the outset that the State purposefully uses malice and intent 

interchangeably, even though it recognizes that there is a distinct difference in our 

jurisprudence: 

“[W]ith the explicit caveat that the State recognizes that malice 

includes more than the requisite criminal intent, because the 

relevant inquiry in this case is the level of intent required in the 

malice element of second degree murder, the State will use the 

terms “malice” and “intent” interchangeably throughout the . . 

. discussion.” 

Even though we recognize that malice and intent to kill have been used interchangeably at 

times, this Court has established that malice is a distinct element of second-degree murder,

separate from intent. See Syl. Pt. 1, State v. Bongalis, 180 W. Va. 584, 378 S.E.2d 449 

(1989) (“‘“Malice, express or implied, is an essential element of murder in the second 

degree, and if absent the homicide is of no higher grade than voluntary manslaughter.”

Syllabus Point 1, State v. Galford, 87 W.Va. 358, 105 S.E. 237 (1920).’ Syllabus Point 2 

of State v. Clayton, 166 W.Va. 782, 277 S.E.2d 619 (1981)”); see also State ex rel. Combs 

v. Boles, 151 W. Va. 194, 198, 151 S.E.2d 115, 118 (1966) (recognizing that malice is an 

essential element of both first- and second-degree murder); Syl. Pt. 1, State v. Ponce, 124 

W. Va. 126, 19 S.E.2d 221 (1942) (“Malice is an indispensable element of murder in the 

second degree; and where, in a trial upon an indictment for murder, there is no evidence 

showing malice or from which it may be inferred, it is error to instruct the jury that it may 

find defendant guilty of murder in the second degree and a verdict of conviction based 

upon such an erroneous instruction will be set aside and a new trial awarded.”). Thus, to 

the extent the State conflates the two terms, and relies upon cases in its brief wherein the 

Court was focused upon malice, rather than the intent element of second-degree murder, 

the State unnecessarily confuses the issue before the Court. In this regard, we have 

discussed the malice element needed to sustain a second-degree murder conviction in a 

number of cases. See, e.g., State v. Bias, 156 W. Va. 569, 575, 195 S.E.2d 626, 629 (1973)

(noting in a sufficiency of the evidence challenge that “[o]rdinarily blows inflicted by one 

person on another with bare fists do not demonstrate[] the malice requisite to sustain a 

conviction of second degree murder. However, we have held that a protracted and 

continued beating with bare hands by a stronger person upon a weaker person can evince 

the malice necessary for a conviction of murder.”); State v. Weisengoff, 85 W. Va. 271, 

286-87, 101 S.E. 450, 457 (1919) (finding that an act “which would be apt to produce death 

or great bodily harm” would be sufficient to show malice); see also State v. Burdette, 135 
9

220 W. Va. 590, 596, 648 S.E.2d 354, 360 (2007) (per curiam) (referring in dicta to intent 

to do great bodily harm as meeting the intent element of second-degree murder). 

Our examination of the elements of second-degree murder begins with the 

common law. As Justice Cleckley, writing for the Court in Guthrie, noted in his thorough 

analysis of murder generally:

At common law, murder was defined as the unlawful killing of 

another human being with “malice aforethought.” Because the 

common law definition of “malice aforethought” was 

extremely flexible, “it became over time an ‘arbitrary symbol’ 

used by trial judges to signify any of the number of mental 

states deemed sufficient to support liability for murder.” John 

S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, 

Jr., Hall’s Criminal Law 268–69 (5th ed. 1993). Nevertheless, 

most American jurisdictions maintained a law of murder built 

around common law classifications. 

194 W. Va. at 673, 461 S.E.2d. at 179. 

The West Virginia Legislature, however, following Pennsylvania’s lead,4

began the departure from the common law by enacting what is currently known as West 

Virginia Code § 61-2-1, codifying murder and dividing it into degrees. The original 

 

W. Va. 312, 332, 63 S.E.2d 69, 81 (1950) (finding in a sufficiency of the evidence 

challenge that evidence of a vicious, brutal, and continued assault, even after victim was 

helpless, was sufficient for the jury to find malice and to sustain a first-degree murder 

conviction). Because we agree with the petitioner that this case is not about the malice 

element of second-degree murder, we address only the issue of intent in this opinion. 

4 See Guthrie, 194 W. Va. at 673 and n.20, 461 S.E.2d at 179 and n.20 (“Pertinent 

to this case, the most significant departure from the common law came on April 22, 1794, 

when the Pennsylvania Legislature enacted a statute dividing murder into degrees.”).
10

codification of first- and second-degree murder in West Virginia provided: “Murder by 

poison, lying in wait, imprisonment, starving, or by any willful, deliberate and 

premeditated killing, or in the commission of, or attempt to commit, arson, rape,5robbery 

or burglary, is murder of the first degree. All other murder is murder of the second degree.” 

See 1 Kelly’s W. Va. Rev’d Stat., Ch. 144, § 1 (1879) (footnote and emphasis added). 6 

The most recent version of the statute, which was last amended in 1991, sets forth both 

first- and second-degree murder as follows:

Murder by poison, lying in wait, imprisonment, 

starving, or by any willful, deliberate and premeditated killing, 

or in the commission of, or attempt to commit, arson, 

kidnapping, sexual assault, robbery, burglary, breaking and 

entering, escape from lawful custody, or a felony offense of 

manufacturing or delivering a controlled substance as defined 

in article four [§ 60A-4-401 et seq.], chapter sixty-a of this 

code, is murder of the first degree. All other murder is murder 

of the second degree.

W. Va. Code § 61-2-1 (2014) (emphasis added).

7

 

 

5

In 1987, the Legislature amended the statute by substituting “sexual assault” for 

“rape.” W. Va. Code § 61-2-1 (1987).

6 The original statute can be traced to its enactment in Virginia in 1849, remaining 

unchanged until it was amended in 1987. See supra note 5. 

7 The punishment for second-degree murder was “confinement in the penitentiary 

not less than five nor more than eighteen years.” W. Va. Code § 61-2-3 (1923). This 

punishment remained the same until 1994, when the punishment for second-degree murder 

was increased to be “a definite term of imprisonment in the penitentiary which is not less 

than ten nor more than forty years.” Id. (Supp. 1994). 
11

Prior to and even for a significant period of time after the enactment of the 

foregoing first- and second-degree murder statute, intent to cause serious bodily harm 

remained a part of the common law elements that could be proven as part of a seconddegree murder conviction. This is reflected in the Court’s decision in State v. Morrison, 

49 W. Va. 210, 38 S.E. 481 (1901). In Morrison, two friends had been drinking together 

when they began to argue, and as a result of the dispute, the defendant picked up a heavy 

stick and struck his friend with what turned out to be a fatal blow. Id. at 212, 38 S.E. at 

482. The defendant was charged with murder, but the jury found him guilty of seconddegree murder. Id. at 211-12, 38 S.E.2d at 482. In syllabus points two and three, the Court 

set forth the elements necessary to prove second-degree murder:

The intent to do enormous or severe bodily harm with a 

deadly weapon, followed by homicide as the result of the 

execution of such intent, constitutes murder in the second 

degree, unless the act be done under such circumstances as 

render the killing excusable, or justifiable, or voluntary 

manslaughter.

A specific intention to kill is not essential to murder in 

the second degree, but it is essential to murder in the first 

degree.8

 

8

Interestingly, while the Morrison case has been cited by the Court as authority for 

the propositions set forth in these two syllabus points, neither syllabus point has been 

quoted by the Court in a majority criminal opinion since Morrison was decided in 1901, 

one hundred and nineteen years ago. Further, the last time the case was cited by the Court 

was in State v. Shrader, 172 W. Va. 1, 302 S.E.2d 70 (1982), which was a first-degree 

murder case that was overruled, in part, by Guthrie in regard to the period of time needed 

to deliberate and premediate—two elements necessary to establish first-degree murder. See

Syl. Pt. 6, Guthrie, 194 W. Va. at 664, 461 S.E.2d at 170. 
12

Id. at 211, 38 S.E. at 481 (footnote added); see State v. Taylor, 57 W. Va. 228, 240, 50 S.E.

247, 252 (1905) (adhering to the common law, stating in dicta that “[i]f there was a fixed 

purpose to do bodily harm, without killing, and death resulted, it was murder of the second 

degree.”).

However, in the early 1980’s, and more specifically, in State v. Hatfield, 169 

W. Va. 191, 286 S.E.2d 402 (1982), the Court moved away from the common law notion 

that the intent to do great bodily harm was a requisite of second-degree murder, finding 

that second-degree murder required intent to kill. In Hatfield, the Court stated:

We discussed at some length in State v. Starkey, supra, the term 

“malice” and concluded it is essentially “a form of criminal 

intent.” 244 S.E.2d at 223. Thus, in regard to first degree 

murder, the term “malice” is often used as a substitute for 

“specific intent to kill” or “an intentional killing.”9 E.g., State 

v. Ferguson, W.Va., 270 S.E.2d 166, 170 (1980); State ex rel. 

Combs v. Boles, 151 W.Va. 194, 198, 151 S.E.2d 115, 118 

(1966). It is clear, however, that the intent to kill or malice is 

a required element of both first and second degree murder but 

the distinguishing feature for first degree murder is the 

existence of premeditation and deliberation.

169 W. Va. at 198, 286 S.E.2d at 407-08 (footnote and emphasis added). 

 

9 See supra note 3. 
13

We made it even clearer in our subsequent opinion in Guthrie that intent to 

kill is a necessary element of second-degree murder, restating our prior holding in Hatfield

as follows:

In State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982), we 

made an effort to distinguish the degrees of murder by 

indicating that the elements that separate first degree murder 

and second degree murder are deliberation and premeditation 

in addition to the formation of the specific intent to kill. 

Deliberation and premeditation mean to reflect upon the intent 

to kill and make a deliberate choice to carry it out. Although 

no particular amount of time is required, there must be at least 

a sufficient period to permit the accused to actually consider in 

his or her mind the plan to kill. In this sense, murder in the first 

degree is a calculated killing as opposed to a spontaneous 

event. 

194 W. Va. at 673-74, 461 S.E.2d at 179-80 (emphasis added). While the Court’s focus in 

Guthrie was the premeditation and deliberation elements of first-degree murder, the Court 

emphasized that intent to kill is an element of both first and second-degree murder:

[T]here must be some evidence that the defendant considered 

and weighed his decision to kill in order for the State to 

establish premeditation and deliberation under our first degree 

murder statute. This is what is meant by a ruthless, coldblooded, calculating killing. Any other intentional killing, by 

its spontaneous and nonreflective nature, is second degree 

murder.

Id. at 675-76, 461 S.E.2d at 181-82 (emphasis added) (footnote omitted).10

 

10 The State relies upon a per curiam decision issued in Davis to support its argument 

that intent to do great bodily harm is sufficient for second-degree murder. Specifically, in 

Davis, the Court, relying upon State v. Haddox, 166 W. Va. 630, 276 S.E.2d 788 (1981), 

which was also a per curiam decision, stated:
14

Most recently in Gerlach v. Ballard, 233 W. Va. 141, 756 S.E.2d 195 (2013), 

this Court again reaffirmed that intent to kill was an essential element of second-degree 

murder. In Gerlach, the issue before us was whether double jeopardy principles were 

violated when a person was convicted of both second-degree murder and death of a child 

by a parent, guardian or custodian. Id. at 144, 756 S.E.2d at 198. Ironically, in undertaking 

a Blockburger11 analysis in Gerlach, which involved examining the elements of each 

crime, the defendant and the State in Gerlach took positions contrary to those taken by 

 

A conviction for second degree murder cannot be 

sustained without proof beyond a reasonable 

doubt that the accused had the requisite criminal 

intent. In regard to second degree murder, the 

requisite criminal intent would be the intent to do 

great bodily harm, or a criminal intent aimed at 

life, or the intent to commit a specific felony, or 

the intent to commit an act involving all the 

wickedness of a felony.

State v. Haddox, 166 W.Va. 630, 632, 276 S.E.2d 788, 

790 (1981) (rejecting State’s argument that intent was 

not element of second degree murder).

Davis, 220 W. Va. at 596, 648 S.E.2d at 360 (quoting Haddox, 166 W. Va. at 632, 276 

S.E.2d at 790). The State, however, ignores the fact that the foregoing language upon 

which it focuses was obiter dicta. Id. Further, notwithstanding that dicta, the Court in 

Davis reversed and remanded for a new trial because we found the jury instruction given 

regarding intent was misleading: “The last question submitted by the jury stated, in effect, 

that ‘intent’ was not an element of second degree murder. The State argued below and in 

this appeal that ‘intent to kill is not an element of the crime of second degree murder.’ This 

argument has no merit.” Id. at 596-97, 648 S.E.2d at 360-61.

11 See Blockburger v. United States, 284 U.S. 299, 204 (1932) (“‘Where the same 

act or transaction constitutes a violation of two distinct statutory provisions, the test to be 

applied to determine whether there are two offenses or only one, is whether each provision 

requires proof of a fact which the other does not.’”); accord Syl. Pt. 4, State v. Gill, 187 

W. Va. 136, 416 S.E.2d 253 (1992) (setting forth Blockburger test).
15

their counterparts in the instant case. The defendant argued that a conviction for seconddegree murder required the State to prove intent to harm, which the defendant argued was 

the same as the intent necessary to prove death of a child by a parent, guardian or custodian; 

the State, on the other hand, argued the intent element of second-degree murder was intent 

to kill. Id. at 147, 756 S.E.2d at 201. 

We recognized in Gerlach that intent to kill has not always been an element

of second-degree murder under our somewhat inconsistent jurisprudence. Id. at 148, 756 

S.E.2d at 202 (citing State v. Hertzog, 55 W.Va. 74, 80, 46 S.E. 792, 794 (1904) (“[T]he 

distinctive element in willful, deliberate, and premeditated murder, not in murder of the 

second degree, is the specific intention to take life[.]”); State v. Dodds, 54 W.Va. 289, 299, 

46 S.E. 228, 232 (1903) (“Wherever, then in cases of deliberate homicide, there is a specific 

intention to take life, the offense, if consummated, is murder in the first degree; if there is 

not a specific intention to take life, it is murder in the second degree.”)). However, 

notwithstanding those earlier precedents, we reiterated that pursuant to Guthrie, intent to 

kill is an element of second-degree murder:

Of importance to the case at bar is the fact that Guthrie made 

it clear that intent to kill is an element of second degree murder. 

In that regard, Justice Cleckley further explained:

[T]here must be some evidence that the defendant 

considered and weighed his decision to kill in order for 

the State to establish premeditation and deliberation 

under our first degree murder statute. This is what is 

meant by a ruthless, cold-blooded, calculating killing. 

Any other intentional killing, by its spontaneous and 

nonreflective nature, is second degree murder.
16

Id. at 675-76, 461 S.E.2d at 181-82 (footnote omitted and 

emphasis added).

Therefore, pursuant to Guthrie, intent to kill is an 

element of second degree murder.

Gerlach, 233 W. Va. at 130-41, 756 S.E.2d at 203 (quoting, in part, Guthrie, 194 W. Va. 

at 675-76, 461 S.E.2d at 181-82) (some emphasis added). 

Applying this conclusion to the facts of the case before it, the Court 

determined that the elements of the second-degree murder and death of a child by a parent, 

guardian or custodian were different as “intent to kill is an element of second degree 

murder. Intent to kill, however, is not an element of the offense of death of a child by a 

parent, guardian or custodian as set forth in West Virginia Code § 61-8D-2a(a).” 233 W. 

Va. at 149, 756 S.E.2d at 203. Therefore, double jeopardy principles were not violated 

when the petitioner was convicted of both. Id. 

Based upon the foregoing, it is apparent that a clear departure from the 

common law began with the Hatfield decision in 1982, wherein the Court recognized that 

the formation of a specific intent to kill was an element of second-degree murder. See 169 

W. Va. at 198, 286 S.E.2d at 407-08; accord Guthrie, 194 W. Va. at 673-74, 461 S.E.2d at 

179-80. Because the Court, however, has never recognized this departure by setting forth 

the elements necessary for second-degree murder in a syllabus point, we now clarify the 

departure that began almost forty years ago by holding that murder in the second degree is 
17

the unlawful, intentional killing of another person with malice, but without deliberation 

and premeditation.

12 To the extent that State v. Morrison, 49 W. Va. 210, 38 S.E.481 

(1901), State v. Haddox, 166 W. Va. 630, 276 S.E.2d 788 (1981),13 and their progeny are 

inconsistent with our holding, they are expressly overruled. 

The reasons this clarification as to the law governing second-degree murder

is necessary are two-fold. First, without clarification, there will continue to be unnecessary 

confusion in the elements necessary to establish second-degree murder, resulting in 

instructional error such as occurred in the instant case. In this regard, we emphasize that 

our holding herein does not mean that second-degree murder cannot be proven on facts 

such as those present in the instant case; there are a myriad of factual scenarios upon which 

the State can prove a charge of second-degree murder, so long as the evidence is sufficient 

to establish the elements of the crime. Succinctly stated, once a jury is properly instructed 

as to the elements of second-degree murder, it then becomes “[t]he jury’s sole function . . 

. to pass on whether a defendant is guilty as charged based on the evidence presented at 

 

12 Indeed, we have upheld convictions based on jury instructions with these elements. 

See Delgado v. Ballard, No. 14-1005, 2015 WL 2382105, at *3 (W. Va. May 18, 2015) 

(memorandum decision) (disagreeing with petitioner’s argument that instruction for 

second-degree murder providing “‘[m]urder in the second degree is the unlawful 

intentional killing of another person with malice but without deliberation and 

premeditation[]’” was incomplete); State v. Foster, 221 W. Va. 629, 640, 656 S.E.2d 74, 

85 (2007) (“‘Our review of the trial transcript indicates that the trial court correctly 

instructed the jury that “[m]urder in the second degree is the unlawful, intentional killing 

of another, with malice, but without deliberation or premeditation.”’”).

13 See supra note 10 (discussing the per curiam decision in Haddox).
18

trial and the law as given by the jury instructions.” Guthrie, 194 W. Va. at 678, 461 S.E.2d 

at 184. This Court makes no pronouncements as to the type or amount of evidence that 

may be sufficient to sustain a second-degree murder conviction; in all but the most unusual 

cases, and upon proper instruction of law, that decision is entirely one for the trier of fact. 

Second, absent clarification that intent to kill is the required element of 

second-degree murder, voluntary manslaughter would sometimes be a lesser included 

offense of second-degree murder and sometimes not—a position espoused by the State in 

this case. As we held in syllabus point one of State v. Louk, 169 W. Va. 24, 285 S.E.2d 

432 (1981), overruled on other grounds by State v. Jenkins, 191 W. Va. 87, 433 S.E.2d 244 

(1994), 

[t]he test of determining whether a particular offense is 

a lesser included offense is that the lesser offense must be such 

that it is impossible to commit the greater offense without first 

having committed the lesser offense. An offense is not a lesser 

included offense if it requires the inclusion of an element not 

required in the greater offense.14

 

14 As for the offenses at issue in this case, we found in syllabus point six of Guthrie, 

194 W. Va. at 664, 461 S.E.2d at 170, that first-degree murder is the malicious, intentional, 

deliberate, and premeditated killing of another. Second-degree murder is the unlawful, 

intentional killing of another person with malice, but without deliberation and 

premeditation. Voluntary manslaughter is the unlawful, intentional killing of another 

without malice. See Syl. Pt. 3, State v. McGuire, 200 W. Va. 823, 490 S.E.2d 912 (1997); 

see also infra Section III. B (discussing McGuire in greater detail). Involuntary 

manslaughter is an unlawful killing. See Syl. Pt. 7, State v. Barker, 128 W. Va. 744, 38 

S.E.2d 346 (1946) (“The offense of involuntary manslaughter is committed when a person, 

while engaged in an unlawful act, unintentionally causes the death of another, or where a 

person engaged in a lawful act, unlawfully causes the death of another.”).
19

(Footnote added). In McGuire, we stated that “[i]n West Virginia, there can be no doubt 

that we also have considered voluntary manslaughter as a lesser included offense of 

murder.” 200 W. Va. at 834, 490 S.E.2d at 923. This recognition was predicated upon 

the intent to kill being necessary elements of both second-degree murder and voluntary 

manslaughter. 

Despite our longstanding recognition that voluntary manslaughter is a lesser 

included offense of second-degree murder, the State invites the Court to allow the State to 

determine “whether voluntary manslaughter is a lesser-included offense [of second-degree 

murder]” based on whether it decides to proceed on a second-degree murder theory of

intent to kill or intent to do great bodily harm. Under the State’s logic, if it proceeded on 

the first theory, voluntary manslaughter would be a lesser included offense for the jury to 

consider; if it proceeded on the second theory, voluntary manslaughter would not be a 

lesser included offense and would not even be listed on the verdict form; and if it proceeded 

on alternative theories, as it did in this case, then it would be up to the jury to decide whether 

voluntary manslaughter would be a lesser included offense—and the verdict form would 

necessarily be a complicated maze of options. We find the State’s suggested approach is 

in direct contravention of our existing law, is so complex as to be incapable of application, 

and is therefore untenable. 
20

Accordingly, because the circuit court erred in instructing the jury that it

could convict the petitioner of second degree murder if it found intent to kill or to cause 

great bodily injury, we reverse and remand the case for a new trial. 

B. Involuntary Manslaughter

The petitioner next argues that the circuit court erred in instructing the jury 

that it could not convict him of voluntary manslaughter as a lesser included offense of 

second-degree murder without proof of sudden provocation and heat of passion.15 The 

petitioner contends that at the same time the circuit court made it easier for the State to 

prove second-degree murder, it made it more difficult for the jury to consider voluntary 

manslaughter by adding the elements of sudden provocation and heat of passion. We agree. 

The Court expressly held in syllabus point three of McGuire that “[g]ross 

provocation and heat of passion are not essential elements of voluntary manslaughter, and, 

therefore, they need not be proven by evidence beyond a reasonable doubt. It is intent 

without malice, not heat of passion, which is the distinguishing feature of voluntary 

 

15 We disagree with the State’s argument that this assigned error was not preserved 

by the petitioner below. Even assuming, arguendo, that it was not properly preserved, the 

Court could review it under the plain error doctrine. See W. Va. Rule of Crim. P. 30 (“No 

party may assign as error the giving or the refusal to give an instruction or the giving of 

any portion of the charge unless that party objects thereto before the arguments to the jury 

are begun, stating distinctly the matter to which that party objects and the grounds of the 

objection; but the court or any appellate court may, in the interest of justice, notice plain 

error in the giving or refusal to give an instruction, whether or not it has been made the 

subject of objection.”). 
21

manslaughter.” 200 W. Va. at 825, 490 S.E.2d at 914, Syl. Pt. 3 (emphasis added).16 Thus, 

to the extent that the jury was instructed that voluntary manslaughter required proof that 

the petitioner killed the victim “unlawfully and intentionally, without premeditation, 

deliberation, or malice, but upon sudden provocation and in the heat of passion[,]” the 

instruction contained elements that were not essential to a conviction for voluntary 

manslaughter. (Emphasis added). The error in the instruction given by the circuit court is 

in direct contravention to the Court’s holding in McGuire. This instructional error also 

warrants a reversal and remand for a new trial. 

V. Conclusion

For the foregoing reasons, the judgment of the Circuit Court of Cabell County is 

reversed, and this case is remanded for a new trial.

Reversed and remanded.

 

16 The State concedes in its brief that sudden provocation and heat of passion are 

not elements of voluntary manslaughter under West Virginia law. But the State argues that 

the inclusion of those elements adds to the State’s burden and is therefore harmless to the

petitioner. We disagree.